Exhibit (d)(9)
DRAFT
THE GALAXY FUND
SUB-ADVISORY AGREEMENT
PAN ASIA FUND
AGREEMENT made as of _____________, 2000 between FLEET
INVESTMENT ADVISORS INC., a New York corporation (the "Adviser"), and UOB GLOBAL
CAPITAL LLC, a ________________ limited liability company ("UOB").
WHEREAS, The Galaxy Fund ("Galaxy") is registered as an
open-end, management investment company under the Investment Company Act of
1940, as amended (the "1940 Act");
WHEREAS, the Adviser has been appointed investment adviser to
Galaxy's Pan Asia Fund (the "Fund");
WHEREAS, the Adviser desires to retain UOB to assist it in the
provision of a continuous investment program for the Fund, and UOB is willing to
do so;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, it is agreed between the parties hereto as follows:
1. APPOINTMENT. The Adviser hereby appoints UOB to act
as sub-adviser to the Fund as permitted by the Adviser's Advisory Agreement with
Galaxy pertaining to the Fund. Intending to be legally bound, UOB accepts such
appointment and agrees to render the services herein set forth for the
compensation herein provided.
2. SUB-ADVISORY SERVICES. Subject to the supervision of
Galaxy's Board of Trustees, UOB will assist the Adviser in providing a
continuous investment program for the Fund, including research and management
with respect to all securities and investments and cash equivalents in the Fund.
UOB will provide services under this Agreement in accordance with the Fund's
investment objective, policies and restrictions as stated in the Fund's
prospectuses and statement of additional information and resolutions of Galaxy's
Board of Trustees applicable to the Fund.
Without limiting the generality of the foregoing, UOB further
agrees that it will:
(a) prepare, subject to the Adviser's approval, lists
of foreign countries for investment by the Fund and determine from time
to time what securities and other investments will be purchased,
retained or sold for the Fund, including, with the assistance of the
Adviser, the Fund's investments in futures and forward currency
contracts;
(b) manage in consultation with the Adviser the
Fund's temporary investments in securities;
(c) place orders for the Fund either directly with
the issuer or with any broker or dealer;
(d) manage the Fund's overall cash position, and
determine from time to time what portion of the Fund's assets will be
held in different currencies;
(e) provide the Adviser with foreign broker research,
a quarterly review of international economic and investment
developments, and occasional reports on international investment
issues;
(f) attend regular business and investment-related
meetings with Galaxy's Board of Trustees and the Adviser if requested
to do so by Galaxy and/or the Adviser; and
(g) maintain books and records with respect to the
securities transactions for the Fund, furnish to the Adviser and
Galaxy's Board of Trustees such periodic and special reports as they
may request with respect to the Fund, and provide in advance to the
Adviser all reports to the Board of Trustees for examination and review
within a reasonable time prior to Galaxy Board meetings.
3. COVENANTS BY SUB-ADVISER. UOB agrees with respect to
the services provided to the Fund that it:
(a) will conform with all Rules and Regulations of
the Securities and Exchange Commission ("SEC") applicable to it;
(b) will use the same skill and care in providing
such services as it uses in providing services to other investment companies;
(c) will telecopy trade information to the Adviser on
the first business day following the day of the trade and cause broker
confirmations to be sent directly to the Adviser. In executing portfolio
transactions and selecting brokers or dealers, UOB will use its best efforts to
seek on behalf of the Fund the best overall terms available. In assessing the
best overall terms available for any transaction, UOB shall consider all factors
it deems relevant, including the breadth of the market in the security, the
price of the security, the financial condition and execution capability of the
broker or dealer, and the reasonableness of the commission, if any, both for the
specific transaction and on a continuing basis. In evaluating the best overall
terms available, and in selecting the broker or dealer to execute a particular
transaction, UOB may also consider the brokerage and research services (as those
terms are defined in Section 28(e) of the Securities Exchange Act of 1934)
provided to the Fund and/or other accounts over which UOB or any affiliate of
UOB exercises investment discretion. UOB is authorized, subject to the prior
approval of Galaxy's Board of Trustees, to pay to a broker or dealer who
provides such brokerage
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and research services a commission for executing a portfolio transaction for the
Fund which is in excess of the amount of commission another broker or dealer
would have charged for effecting that transaction if, but only if, UOB
determines in good faith that such commission was reasonable in relation to the
value of the brokerage and research services provided by such broker or
dealer--viewed in terms of that particular transaction or in terms of the
overall responsibilities of UOB to the Fund and to Galaxy.
Except to the extent permitted by the SEC or by applicable
law, portfolio securities will not be purchased from or sold to the Adviser,
UOB, the Fund's distributor (the "Distributor"), or any affiliated person of
either Galaxy, the Adviser, UOB, or the Distributor.
(d) will treat confidentially and as proprietary
information of Galaxy all records and other information relative to the Fund and
prior, present or potential shareholders, and will not use such records and
information for any purpose other than performance of its responsibilities and
duties hereunder (except after prior notification to and approval in writing by
Galaxy, which approval shall not be unreasonably withheld and may not be
withheld and will be deemed granted where UOB may be exposed to civil or
criminal contempt proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities, or when so requested by
Galaxy);
(e) will notify Galaxy of any change in its
membership within a reasonable time after
such change.
4. SERVICES NOT EXCLUSIVE. (a) The services furnished by
UOB hereunder are deemed not to be exclusive, and nothing in this Agreement
shall (i) prevent UOB or any affiliated person (as defined in the 0000 Xxx) of
UOB from acting as investment adviser or manager for any other person or
persons, including other management investment companies with investment
objectives and policies the same as or similar to those of the Fund or (ii)
limit or restrict UOB or any such affiliated person from buying, selling or
trading any securities or other investments (including any securities or other
investments which the Fund is eligible to buy) for its or their own accounts or
for the accounts of others for whom it or they may be acting; PROVIDED, HOWEVER,
that UOB agrees that it will not undertake any activities which, in its
judgment, will adversely affect the performance of its obligations to the Fund
under this Agreement.
(b) Nothing contained herein, however, shall prohibit
UOB from advertising or soliciting the public generally with respect to other
products or services, regardless of whether such advertisement or solicitation
may include prior, present or potential shareholders of Galaxy.
5. PORTFOLIO TRANSACTIONS. Investment decisions for the
Fund shall be made by UOB independently from those for any other investment
companies and accounts advised or managed by UOB. The Fund and such investment
companies and accounts may, however, invest in the same securities. When a
purchase or sale of the same security is made at substantially the same time on
behalf of the Fund and/or another investment company or account, the transaction
will be averaged as to price, and available investments allocated as to amount,
in a manner which
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UOB believes to be equitable to the Fund and such other investment company or
account. In some instances, this investment procedure may adversely affect the
price paid or received by the Fund or the size of the position obtained or sold
by the Fund. To the extent permitted by law, UOB may aggregate the securities to
be sold or purchased for the Fund with those to be sold or purchased for other
investment companies or accounts in order to obtain best execution.
6. BOOKS AND RECORDS. In compliance with the
requirements of Rule 31a-3 under the 1940 Act, UOB hereby agrees that all
records which it maintains for Galaxy are the property of Galaxy and further
agrees to surrender promptly to Galaxy any of such records upon Galaxy's
request. UOB further agrees to preserve for the periods prescribed by Rule 31a-2
under the 1940 Act the records required to be maintained by Rule 31a-1 under the
1940 Act.
7. EXPENSES. During the term of this Agreement, UOB will
pay all expenses incurred by it in connection with its activities under this
Agreement other than the cost of securities, commodities and other investments
(including brokerage commissions and other transaction charges, if any)
purchased for the Fund.
8. COMPENSATION. For the services provided and the
expenses assumed with respect to the Fund pursuant to this Agreement, the
Adviser will pay UOB and UOB will accept as full compensation therefor fees,
computed daily and paid quarterly, at the annual rate of 0.72% of the Fund's
average daily net assets.
9. LIMITATION OF LIABILITY OF UOB. UOB shall not be
liable for any error of judgment or mistake of law or for any loss suffered by
Galaxy or the Adviser, except a loss resulting from a breach of fiduciary duty
with respect to the receipt of compensation for services or a loss resulting
from willful misfeasance, bad faith or gross negligence on the part of UOB in
the performance of its duties or from reckless disregard of its obligations and
duties under this Agreement.
10. REFERENCE TO UOB. Neither the Adviser nor any
affiliate or agent of it shall make reference to or use the name of UOB or any
of its affiliates, or any of their clients, except references concerning the
identity of and services provided by UOB to the Fund, which references shall not
differ in substance from those included in the current registration statement
pertaining to the Fund, this Agreement and the Advisory Agreement between the
Adviser and Galaxy with respect to the Fund, in any advertising or promotional
materials without the prior approval of UOB, which approval shall not be
unreasonably withheld or delayed. The Adviser hereby agrees to make all
reasonable efforts to cause Galaxy and any affiliate thereof to satisfy the
foregoing obligation.
11. DURATION AND TERMINATION. This Agreement shall become
effective on the date of the commencement of the Fund, provided that the Board
of Trustees of Galaxy has previously approved the Agreement in accordance with
the requirements of the 1940 Act. Unless sooner terminated as provided herein,
this Agreement shall continue in effect until May 31, 2001. Thereafter if
not terminated, this Agreement shall continue in effect for successive
twelve-month periods ending on May 31, PROVIDED such continuance is
specifically approved at least annually (a) by the vote of a majority of those
members of Galaxy's Board of Trustees who
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are not parties to this Agreement, or interested persons of any such party, cast
in person at a meeting called for the purpose of voting on such approval, and
(b) by Galaxy's Board of Trustees or by the vote of a majority of the
outstanding voting securities of the Fund. Notwithstanding the foregoing, this
Agreement may be terminated at any time, without the payment of any penalty, by
the Adviser or by Galaxy (by Galaxy's Board of Trustees or by vote of a majority
of the outstanding voting securities of the Fund) on 60 days' written notice to
UOB (which notice may be waived by the party entitled to receive the same) and
will automatically terminate upon the termination of the Advisory Agreement
between the Adviser and Galaxy with respect to the Fund. This Agreement may be
terminated by UOB at any time, without payment of any penalty, on 90 days'
written notice to Galaxy and the Adviser (which notice may be waived by the
party entitled to receive the same). This Agreement will automatically terminate
in the event of its assignment. (As used in this Agreement, the terms "majority
of the outstanding voting securities," "interested persons" and "assignment"
shall have the same meanings as such terms in the 1940 Act.)
12. AMENDMENT OF THIS AGREEMENT. No provision of this
Agreement may be changed, waived, discharged or terminated orally. A provision
of this Agreement may only be changed, waived, discharged or terminated by an
instrument in writing signed by the party against which enforcement of the
change, waiver, discharge or termination is sought. No amendment of this
Agreement shall be effective with respect to the Fund until approved by the vote
of a majority of the outstanding voting securities of the Fund.
13. NOTICE. Any notice, advice or report to be given
pursuant to this Agreement shall be delivered or mailed:
To UOB at:
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: _________________
To the Adviser at:
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. X'Xxxxx
To Galaxy at:
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
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With a copy to:
W. Xxxxx XxXxxxxx, III, Esq.
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
14. MISCELLANEOUS. The captions in this Agreement are
included for convenience of reference only and in no way define or delimit any
of the provisions hereof or otherwise affect their construction or effect. If
any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement shall not
be affected thereby.
This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and shall be
governed by New York law.
15. NAMES. The names "The Galaxy Fund" and "Trustees of
The Galaxy Fund" refer respectively to the Trust created and the Trustees, as
trustees but not individually or personally, acting from time to time under a
Declaration of Trust dated March 31, 1986 which is hereby referred to and a copy
of which is on file at the office of the State Secretary of the Commonwealth of
Massachusetts and the principal office of the Trust. The obligations of "The
Galaxy Fund" entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually, but in such
capacities, and are not binding upon any of the Trustees, shareholders, or
representatives of Galaxy personally, but bind only the property of Galaxy, and
all persons dealing with any class of shares of Galaxy must look solely to the
property of Galaxy belonging to such class for the enforcement of any claims
against Galaxy.
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IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their officers designated below as of the day and
year first above written.
FLEET INVESTMENT ADVISORS INC.
By:
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Name: Xxxxxx X. X'Xxxxx
Title: President
UOB GLOBAL CAPITAL LLC
By:
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Name:
Title:
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